The rules regarding common law marriage in Florida changed in 1968. Many states have changed their laws regarding common-law marriages, and today only a few states still recognize them.
By definition, the legal concept of common-law marriage applies to a couple with the appearance of marriage but doesn’t go through an official formal process of a ceremonial wedding, nor has their union recorded by state or religious registry.
This article will shed light on common law marriages in general and how the State of Florida treats this concept.
Does Florida Recognize Common Law Marriage?
Florida does not recognize any common law marriage established after January 1, 1968. In fact, in 1868, the state passed a law that makes it illegal for two people to live together without being married because it was “led and lascivious.”
Not only did the law consider it illegal, but it also considered it a felony punishable by up to 60 days of jail and a $500 fine. The state did not revoke this law until the year 2016. However, common-law marriages are still not allowed, and the law requires couples to have a marriage license to treat them like a legally married couple.
States That Recognize Common Law Marriages
Even though the state revoked Florida common laws, many states still allow common-law marriages, such as Colorado, Iowa, Kansas, District of Columbia, Montana, Oklahoma, Rhode Island, and Texas.
Legal Requirements for Common Law Marriage
Contrary to popular belief, it takes more than just a couple to live together to have a common-law marriage. For the states mentioned above to recognize the marriage as valid under the common law, couples must meet certain requirements.
In addition to some conditions specific to each state, generally, the couple must prove that:
- They lived together for a particular amount of time.
- They held themselves out to their community as married (i.e., calling each other husband and wife, opening accounts in joint names, or voluntarily adopting the same last name).
- They are otherwise legally allowed to be married (they are above the minimum legal age and aren’t already married to someone else)
- Does Florida Recognize Common-Law Marriages From Other States?
Although the Florida Statutes about common-law marriages are clear, there is an exception in which the state will recognize common-law marriages. Thus, you won’t have to worry about your common law rights in Florida.
The Full Faith and Credit Clause of the U.S. Constitution requires all states to accept a common law marriage established in a state that recognizes these marriages.
This clause ensures that if couples are married under a common-law marriage in a state that considers it legal to do so, they can maintain their status if they move to a state that does not legally recognize common law marriage.
In other words, Florida couples who entered into a common-law marriage before 1968 will have their marriage recognized by other states if they move.
Common Law Marriage: Myths, Pros, and Cons
Like any other legal matter, common law marriage brings its misconceptions, advantages, and disadvantages. Let’s look at some below.
- Cohabitation alone is enough for a valid marriage. Couples should present themselves in public as husband and wife.
- Property bought during common law marriage is considered a marital asset. Legally married couples only have the right to divide marital assets. If one of the spouses in a common law marriage is the owner of a shared residence, they have the right to sell it without the other spouse’s consent and without splitting the proceedings.
- Common law parents have to each adopt any child they have together. Children that the parents acknowledge in a common law marriage are automatically considered legitimate without adoption. Both parents and children in a common-law marriage have the same rights and duties as those of a legal marriage.
- The surviving partner automatically inherits all assets in case their common law spouse dies. One might claim an inheritance; however, the court will probably demand proof of a valid common law marriage. Therefore, people in a common-law marriage should consider drafting a will.
When it is legally recognized, common-law marriage is more beneficial for common-law spouses than unmarried or cohabitating couples.
These rights include:
- Deciding for a disabled spouse
- The right to a formal divorce
- Possibility of inheriting spouse’s property and assets
- In terms of Social Security Benefits, the spouses will have a stronger case for survivor benefits in a common-law marriage than simply living together.
- If a job offers spousal coverage for health insurance, the employer will have to allow the enrollment of the spouse in a common-law marriage. Moreover, the law also considers children of common-law marriages an employee’s dependents.
- Common law marriages are confusing and often hard to prove.
- If it is not clearly established, common-law marriage makes it hard for a spouse to collect benefits and incentives.
- Although spouses enter common-law marriage without going through an official process,
- they will need to go through an official divorce process.
Common-law divorce exists neither in Florida nor in any other state. The law demands that couples separate under official divorce law even if they were married under the common law. In a lot of cases, common-law marriage adds significant complexity and difficulty to the divorce proceeding.
Without an official marriage license to prove to the court the official union of the couple, the court has no easy way to determine whether the couple is married under the common law or not. This complexity demands the couple to prove to the court their marriage before proceeding with the divorce.
If spouses are going through a common-law divorce, they should probably contact an experienced divorce attorney because several issues may arise, including:
- Disagreement over property and assets accumulated during marital years
- Arguments regarding custody and parenting plans
- Court orders regarding child support payments or alimony
A couple can choose to sign a cohabitation agreement to maintain both parties’ rights in the relationship since common-law marriage is not allowed in Florida.
A cohabitation agreement is a legally binding contract that a couple drafts and agrees on.
The Florida courts recognize these contracts to protect each party’s assets in the event of a breakup. Like prenuptial agreements, cohabitation agreements serve as an effective way to protect the couple’s assets.
However, a couple can include more than just asset-related clauses in the agreement they draft. Agreements can address the following: child custody, child support, debts, expenses, savings, personal property, health care, insurance, income, inheritances, pets, and alimony.
Enforcing a Cohabitation Agreement
Establishing a cohabitation agreement requires the couple to make sure that there are disclosures in the agreement that both parties sign in the presence of a notary.
Should a couple ever need to modify the agreement, both parties should agree to make the changes in writing. They can also draft a new document and disclose that the new cohabitation agreement renders the first null and void.
Child Custody and Support
Since the child’s interest always comes first, parents’ marital status does not affect child custody and support cases. Married or not, both parents have a legal duty to support their children.
The court will base the amount of child support on Florida’s Child Support Guidelines. The Guidelines outline the amount of support to be paid for each specific case. The amount of support is based primarily on the parents’ income, custody rights, and the number of children involved.
In conclusion, common law marriage in fl has not been legal since 1968. Today, only a handful of states still allow this kind of marriage due to the complexity it is causing when a couple is seeking a divorce.
However, the constitution requires all states to recognize common-law marriages legally established in other states that allow them.
- Even though common law in Florida is not allowed, couples can still preserve their rights in the case of breakups and avoid ambiguity and problems. A common law couple can draft and sign cohabitation agreements under Florida cohabitation law.
- In cohabitation agreements, couples can address several personal issues like debt, income, alimony, property, and inheritance.
- Child support and custody matters do not change if the parents are not married.
- Unmarried parents have the same rights as married ones when it comes to their children because, in this case, the children’s interest overcomes the parents’ marital status.
- After all, each relationship is different, and what might work for a couple might not work for another. Therefore, clear communication between the partners is essential to avoid complications.
Keep in mind that if you are a common-law couple, then you must get familiar with marriage laws in Florida. Try and find a trusted family law attorney with your best interest at heart.
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